CA Unpub Decisions

Emma M. (Mother) challenges the dependency court’s jurisdictional and dispositional orders finding she was unable to arrange for her child Noe F.’s (Noe) care after Mother was arrested and incarcerated on a gang-related offense. She contends that insufficient evidence supports the allegation under Welfare & Institutions Code section 300, subdivision (b)[1] that she was not able to protect Noe because Mother was incarcerated and failed to make arrangements for Noe’s care. She further argues that the dependency court erred in giving Noe S. (Father) custody of Noe without making the findings required under section 361.2 regarding placement with Father. Department of Children and Family Services (DCFS) cross-appeals, and filed a letter brief in which it does not concede error, but stated it does not oppose a reversal of the court’s jurisdictional and dispositional orders. We reverse.

The trial court revoked Federico Fernandez’s probation and sentenced him to the maximum period of confinement. Fernandez appealed. We affirm and order correction of the abstract of judgment.

Appellant Johnny Bustos III, appeals from the judgment entered following his convictions by jury on two counts of lewd act upon a child (Pen. Code, § 288, subd. (a);[1] count 1 & 2) and on count 3 – continuous sexual abuse (§ 288.5, subd. (a)), with court findings he suffered a prior felony conviction (§ 667, subd. (d)), a prior serious felony conviction (§ 667, subd. (a)), and a prior sex offense conviction (§ 667.61, subds. (a), (c), & (d)(1)). The court sentenced appellant to prison for 155 years to life. We modify the judgment and, as modified, affirm it.

Appellant Juan Jose Garcia appeals from the judgment entered following his conviction by jury on count 1 – lewd act upon a child (Pen. Code, § 288, subd. (a)). The court sentenced appellant to prison for six years. We affirm the judgment.

Defendant and appellant, Henry Harris, appeals his conviction for sale of a controlled substance with prior serious felony conviction, prior prison term and prior drug conviction enhancements. (Health & Saf. Code, §§ 11352, 11370.2; Pen. Code, §§ 667, subds. (b)-(i), 667.5.)[1] He was sentenced to state prison for 15 years.
The judgment is affirmed as modified.

Cesar Otero appeals from the judgment entered following his convictions by jury for attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187; count 1) and shooting from a motor vehicle (Pen. Code, § 12034, subd. (c); count 3) each offense with personal use of a firearm, personal and intentional discharge of a firearm, and personal and intentional discharge of a firearm causing great bodily injury (Pen. Code, §§ 12022.53, subds. (b), (c) & (d)), and for possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); count 2) with court findings he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)). The court sentenced appellant to prison for life with the possibility of parole (with a minimum parole eligibility term of 14 years), plus 30 years.

A jury convicted Mario Alford of attempted murder (count 1) (Pen. Code, §§ 664 and 187, subd. (a)),[1] assault with a firearm (count 2) (§ 245, subd. (a)(2)), and shooting at an inhabited dwelling (count 3) (§ 246). The jury convicted codefendant Rashon McDaniels of counts 1 and 3, finding him not guilty on count 2. As to count 1, the jury found that the attempted murder was committed willfully, deliberately, and with premeditation, and that a principal personally used and intentionally discharged a firearm, proximately causing great bodily injury to another person. (§§ 12022.53, subds. (b)‑(e)(1) & 12022.7, subd. (a).) The jury also found true allegations that counts 1 through 3 were committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote criminal conduct by gang members. (§ 186.22, subd. (b).) Finally, as to counts 1 through 3, the court found true allegations that Alford had suffered a prior conviction of a serious and/or violent felony; it also found true that he had suffered two prior felony convictions, that he served prison terms for each, and that he thereafter committed another felony within a five-year period after completing said terms. (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i).) The court denied Alford’s motion to strike his prior conviction for a serious felony pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Alford was sentenced to 68 years to life in state prison, consisting of 55 years to life on count 1 and 13 years on count 2, to run consecutively. On count 1, the court imposed a term of 15 years to life under section 186.22, subdivision (b)(5), doubled to 30 years to life under the “Three Strikes” law, plus 25 years to life for the firearm use enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1). As to count 2, the trial court selected the upper term of four years, doubled to eight years under the Three Strikes law, plus five years for the gang enhancement under section 186.22, subdivision (b)(1). The court imposed a term of 55 years to life on count 3, to run concurrently with the term on count 1.

Rosa C. (Mother) appeals from the order of the Alameda County juvenile court terminating her parental rights as to her son J.R. in accordance with Welfare and Institutions Code section 366.26.[1] Mother contends: (1) the juvenile court’s finding that J.R. was adoptable is not supported by substantial evidence, and (2) the juvenile court abused its discretion in not placing J.R. with a maternal relative. We conclude that neither of these contentions has merit, and affirm the termination order.

Albert Lee (Lee) appeals from an order denying in part his motion to strike or tax costs claimed by respondent Salvio Street LLC (Salvio) after this court awarded Salvio costs on appeal for one of two consolidated appeals. Lee contends the court erred in awarding Salvio too much toward Salvio’s costs of preparing an appendix and printing appellate briefs. Lee also appeals from the trial court’s denial of Lee’s motion for sanctions against Salvio for seeking an award of costs for reporters’ transcripts to which Salvio eventually agreed it was not entitled.
As to the order on Lee’s motion to tax costs, we will direct the trial court to tax an additional $55.06 and otherwise affirm the order. We will also affirm the order denying Lee’s motion for sanctions.[1]

Plaintiff filed a class action against her former employer, defendant Macy’s Department Stores, Inc. (Macy’s), challenging its classification of her employment and seeking compensation. Because plaintiff’s employment agreement contained an arbitration provision precluding class relief, the trial court dismissed her class claims and ordered arbitration under the United States Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion (2011) 131 S.Ct. 1740 (Concepcion), which holds that the Federal Arbitration Act (9 U.S.C. § 1 et seq.) (FAA) preempts California decisional law holding certain class action waivers unenforceable. We affirm.

Plaintiffs own a parcel of real property subject to a 96-year lease. The lease contains a provision requiring the lessee to keep the premises free and clear of encumbrances resulting from the lessee’s activities. Plaintiffs sued the current lessee, defendants Hambro Forest Products, Inc. and/or Humboldt Flakeboard Panels, Inc., a subsidiary (jointly Hambro), when Hambro executed two deeds transferring its leasehold interest in trust, contending the deeds of trust breached the lease by encumbering the property. The trial court sustained a demurrer without leave to amend, reasoning a transfer of the leasehold interest did not constitute an encumbrance of plaintiffs’ interest in the property. We affirm.

Appellant Shelley M. Santos appeals after the trial court granted summary judgment in favor of the respondents, Richard S. Hawkins, D.D.S., and Lourdes P. Veronica Hawkins, D.D.S. (collectively, the Hawkinses).[1] Santos had been a patient of the Hawkinses and had received dental care between 1995 and 2007. Santos filed a complaint against the Hawkinses in 2008 for negligence based on allegations that she had several problems with her teeth caused by the Hawkinses’ malpractice. Santos was unable to find an expert to support her claims of dental malpractice.

A jury found defendant and appellant, Daniel Murillo Salgado (defendant), guilty as charged of one count of first degree murder, one count of discharging a firearm at an occupied motor vehicle, two counts of attempted murder, and one count of discharging a firearm from a motor vehicle. In connection with each count, the jury also found true various sentence enhancements based on defendant’s alleged use of a firearm and criminal street gang involvement. In addition, the jury found true the special circumstance allegation in connection with the murder and attempted murder charges that defendant was motivated to commit the crimes because of the victims’ race. Based on the jury’s guilty verdicts and true findings, the trial court sentenced defendant to serve a total term in state prison of life without the possibility of parole on the first degree murder conviction, and a consecutive term of 117 years to life on the remaining counts, sentence enhancements, and special circumstance findings.

Linitone Puleali Taeotui brandished a knife at Vaalele Faatiliga and threatened to kill him. A jury found Taeotui guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); subsequent section references are to this code) and making a criminal threat (§ 422, subd. (a)). In a bifurcated proceeding, the trial court found true certain allegations regarding Taeotui's prior convictions and prison terms. The court sentenced Taeotui to prison for an aggregate term of nine years.
On appeal, Taeotui contends the judgment must be reversed because (1) there was insufficient evidence he ever had a present ability to injure Faatiliga with the knife, as required to support the conviction of assault with a deadly weapon; and (2) his trial counsel provided ineffective assistance by failing to request a jury instruction on voluntary intoxication with respect to the charge of making a criminal threat. We reject these contentions and affirm the judgment.